MacK B. Yates v. Harris County, City of Houston, Houston Independent School District, and Houston Community College System

• Court: Court of Appeals of Texas
• Decided: September 26, 2017
• Docket: 01-16-00086-CV
• Status: Published

Opinion

Opinion issued September 26, 2017

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-16-00086-CV ——————————— MACK B. YATES, Appellant V. HARRIS COUNTY, CITY OF HOUSTON, HOUSTON INDEPENDENT SCHOOL DISTRICT, AND HOUSTON COMMUNITY COLLEGE SYSTEM, Appellees

On Appeal from the 113th District Court Harris County, Texas Trial Court Case No. 2014-67727

MEMORANDUM OPINION

Appellant Mack B. Yates, proceeding pro se, appeals the trial court’s

judgment for delinquent taxes rendered in favor of appellees Harris County, the City

of Houston, Houston Independent School District, and Houston Community College System. In three issues, Yates contends that he is entitled to a new trial because

(1) no reporter’s record was taken and the appellate record is incomplete, (2) the trial

court erred by entering judgment without notifying him of or ordering his presence

at trial, and (3) the trial court erred by denying his motion for new trial for the same

reasons.

Because the failure to have a court reporter make a record is reversible error

in the context of a post-answer default judgment such as the one against Yates, we

reverse the judgment as to Yates and remand for a new trial on appellees’ claims

against Yates.

Background

Appellees sued Yates and other owners of a piece of real property in Harris

County for delinquent property taxes, penalties, interest, and attorney’s fees. Yates

filed an answer. When the case was called for trial, Yates, who is incarcerated, was

not present. After trial, the trial court rendered a judgment against all defendants for

delinquent taxes, interest, costs, and attorney’s fees.1

Yates timely filed a motion for new trial and notice of appeal. He was

confirmed indigent and this Court directed the district clerk to file the clerk’s record

and the court reporter to file the reporter’s record. The district clerk filed the clerk’s

1 No other defendant appealed. 2 record, but the court reporter filed an information sheet indicating that no reporter’s

record was taken.

Appellate Jurisdiction

Before turning to the merits, we address appellees’ argument that we lack

jurisdiction over the appeal because Yates’s notice of appeal does not identify the

correct trial court or state that the appeal is to the First or Fourteenth Court of

Appeals, as required by Texas Rule of Appellate Procedure 25.1(d)(1) and (4).

A. Standard of Review and Applicable Law

We review questions of appellate jurisdiction de novo. See Tex. Lottery

Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Texas

Rule of Appellate Procedure 25.1 provides, among other things, that the notice of

appeal must:

(1) identify the trial court and state the case’s trial court number and style; [and] ...

(4) state the court to which the appeal is taken unless the appeal is to either the First or Fourteenth Court of Appeals, in which case the notice must state that the appeal is to either of those courts[.]

TEX. R. APP. P. 25.1(d)(1), (4). Properly filing a notice of appeal is a prerequisite to

appellate jurisdiction. Id. at 25.1(b). However, strict compliance with Rule 25.1 is

not necessarily required to invoke appellate jurisdiction so long as the appellant files

3 an instrument that is a “bona fide attempt to invoke appellate jurisdiction.” City of

San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (quoting Grand Prairie Indep. Sch.

Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991) (per

curiam)). For example, if an appellant incorrectly denotes a case number on his

notice of appeal, but there is “no suggestion of confusion” regarding the judgment

from which the appellant sought to appeal or to whom the appellant sought to appeal,

dismissal for lack of jurisdiction is inappropriate. See Rodriguez, 813 S.W.2d at

418. In other words, where the attempt to perfect the appeal was “bona fide,”

appellate jurisdiction is not defeated. Id.

B. Analysis

Appellees argue that we lack jurisdiction over this appeal because Yates’s

notice of appeal identifies the incorrect trial court and does not state that appeal is to

the First or Fourteenth Court of Appeals, as required by Texas Rule of Appellate

Procedure 25.1(d)(1) and (4). They rely upon Stubblefield v. Courtland Village

Townhomes Homeowner’s Ass’n, No. 01-00-01328-CV, 2002 WL 1340296 (Tex.

App.—Houston [1st Dist.] June 20, 2002, no pet.) (mem. op., not designated for

publication), to support their argument that the appeal should be dismissed for lack

of jurisdiction. In Stubblefield, Stubblefield incorrectly identified the trial court

cause number in his notice of appeal, even though the record showed that he was

aware that his case had been severed and assigned a new cause number. Id. at *2.

4 Stubblefield also did not indicate on his notice the date of the final judgment that he

was attempting to appeal, as required by Rule 25.1(d)(2), or the court to which the

appeal was taken, as required by Rule 25.1(d)(4). Id. at *2. Moreover, it was

Stubblefield’s fourth appeal regarding the same issues. Id. For all of these reasons,

the Stubblefield court concluded that the appeal should be dismissed for lack of

jurisdiction. Id.

By contrast, here, Yates’s notice of appeal correctly identifies the trial court

cause number and style, two of the three things required by Rule 25.1(d)(1).

Although the notice misidentifies the trial court and does not state that the appeal is

to the First or Fourteenth Court of Appeals, it properly identifies the date of the

judgment and includes the other Rule 25.1(d) requirements. See TEX. R. APP. P.

25.1(d). There is no suggestion that any party was confused about what judgment

Yates was appealing, or to whom Yates sought to appeal. See Rodriguez, 813

S.W.2d at 418. Accordingly, we conclude that Yates made a bona fide attempt to

invoke appellate jurisdiction with his notice of appeal, and dismissal is

inappropriate. See id.

Having concluded that we have jurisdiction over this appeal, we turn to the

merits.

5 Discussion

In his first issue, Yates argues that the judgment should be reversed because

no reporter’s record was taken and the appellate record is incomplete.

A. Applicable Law

Post-answer default judgments cannot be entered on the pleadings, but, rather,

a plaintiff must offer evidence and prove his case as in a judgment on trial. Sharif

v. Par Tech, Inc., 135 S.W.3d 869, 873 (Tex. App.—Houston [1st Dist.] 2004, no

pet.) (citing Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979)). “If the

judgment is rendered after presentation of evidence to the court in the absence of the

appellant,” then “the failure to have the court reporter present to make a record

constitutes reversible error.” Id. (quoting Chase Bank v. Harris Cty. Water Control

& Improvement Dist., 36 S.W.3d 654, 655 (Tex. App.—Houston [1st Dist.] 2000,

no pet.)). “Such error is not harmless because, without a reporter’s record, this Court

is unable to determine if sufficient evidence was submitted to support the judgment.”

Id. (quoting Chase Bank, 36 S.W.3d at 655–56).

Yates contends that he is entitled to reversal because no reporter’s record was

taken of the trial. It is undisputed that Yates filed an answer, that he did not appear

at trial, and that there was no reporter’s record taken. Because the judgment rendered

against Yates was a post-answer default judgment, the failure to have a reporter’s

6 record taken of the trial constitutes reversible error. See Sharif, 135 S.W.3d at 873;

Chase Bank, 36 S.W.3d at 655–56. Accordingly, we must reverse for a new trial on

appellees’ claims against Yates. See, e.g., Chase Bank, 36 S.W.3d at 656 (because

there was no reporter’s record of post-answer default judgment entered in delinquent

property tax case, appellate court was required to reverse and remand for a new trial).

We sustain Yates’s first issue.

Because we have sustained Yates’s first issue, we do not reach his second and

third issues, which would result in no greater relief.

Conclusion

We reverse the trial court’s judgment as to Yates and remand for further

proceedings on appellees’ claims against Yates. The judgment as to the other

defendants, who did not appeal, is affirmed.

Sherry Radack Chief Justice

Panel consists of Chief Justice Radack and Justices Keyes and Massengale.